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Legal Memorandum: Qualified or Conditional Privilege

Issue: The effect on a qualified or conditional privilege when the defamatory statements are passed on by those in the privileged group to others outside the group, such as to very close friends or relatives.

Area of Law: Litigation & Procedure
Keywords: Qualified or conditional privilege; Defamatory statements; Close friends or relatives
Jurisdiction: Arizona, Connecticut, Delaware, Hawaii, Minnesota, Utah, Wisconsin
Cited Cases: 416 N.E.2d 528; 318 N.W.2d 141; 345 F.3d 669; 634 A.2d 657; 595 N.Y.S.2d 4; 851 P.2d 143; 17 F.3d 980; 688 P.2d 617; 796 P.2d 426; 812 P.2d 49; 980 F.2d 518; 690 S.W.2d 775; 609 F. Supp. 1555; 66 F.2d 700
Cited Statutes: Restatement (Second) of Torts §§ 603—605; Restatement (Second) of Torts § 595
Date: 02/01/2008

 The general rule is that “[a] qualifiedly privileged communication must be limited in scope to what is necessary to protect the interest or duty giving rise to the privilege, and must be made in a proper manner to proper persons only.”  53 C.J.S. Libel and Slander; Injurious Falsehood § 116 (2006).  In other words, “[a] conditional privilege to utter a defamatory statement may be lost . . . if it is published for a purpose other than that for which the particular privilege is given, [or] if the publication is made to some person not reasonably believed to be necessary to accomplish the purpose.”  Id.; see also Restatement (Second) of Torts §§ 603—605 (stating that a qualified privilege is lost if the speaker does not act for the purpose of protecting the interest that is the reason for the existence of the privilege, knowingly publishes the matter to a person to whom its publication is not otherwise privileged, or does not reasonably believe the matter to be necessary to accomplish the purpose for which the privilege is given).  Thus, “[a] qualified privilege may be lost through excessive publication or through abuse.”  53 C.J.S. Libel and Slander; Injurious Falsehood § 116 (citing Gonzalez v. Avon Prods., Inc., 609 F. Supp. 1555 (D. Del. 1985); Bleich v. Ortiz, 493 A.2d 236 (Conn. 1985); Vlasaty v. Pacific Club, 670 P.2d 827 (Haw. 1983); Henry v. Halliburton, 690 S.W.2d 775 (Mo. 1985); Denny v. Mertz,